Who’s Sovereign Now?

Hard to say what’s more bizarre about Antonin Scalia’s furious dissent against the Supreme Court’s decision striking down most of Arizona’s anti-immigrant law: his railing at President Barack Obama’s executive order stopping the deportation of immigrants brought here as children (which wasn’t remotely the subject of the case at hand) or his basis for upholding Arizona’s law—that Arizona is a sovereign state with the rights generally claimed by nation-states.

“Today’s opinion,” Scalia writes, “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” This power, he continues, has been recognized as far back as 1758, when the Swiss philosopher Emer de Vattel, in his book The Law of Nations, wrote, “The sovereign may forbid the entrance of his territory either to foreigners in general, or for certain particular purposes.”

Vattel was writing about nation-states, of course, not the individual states of the United States, which did not at the time exist. That doesn’t deter Scalia, who embarks on a tortuous, 22-page argument that Arizona has the rights generally accorded to nations. He first goes about this by claiming that some parenthetical constitutional clauses from 1787 give the states those rights. Among his citations: “No state shall, without the consent of Congress, engage in War, unless actually invaded or in such imminent Danger as will not admit of delay.” (So states can declare war?) He notes that “in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases and (in Southern States) freed blacks.” (So the South’s prohibition on freed slaves is a precedent for Arizona’s law?) An acknowledgement of the states’ power to control immigration, he writes, is included in the Constitution’s Article I, which stipulates that the “Importation of such Persons as any of the States now existing shall think proper to admit shall not be prohibited by Congress prior to the Year 1808.” (This provision was a deal insisted on by Southern states to hold off for the first 20 years after the Constitutional Convention any effort by Congress to curtail the importation of slaves from Africa and the Caribbean. So a measure to placate the South by guaranteeing a 20-year run for the slave trade is a basis for according Arizona sovereign status?)

According to Scalia, it is. “Arizona is entitled,” he writes with italicized emphasis, “to have 'its own immigration policy—so long as that does not conflict with federal law.'” What Scalia seems to have overlooked is the restriction on state sovereignty established first by the Constitution (the prohibition on the individual states making war carries more weight than the clause allowing states to respond by themselves if invaded) and then by the Union victory in the Civil War, an event of which Scaliastic originalists seem curiously unaware.

Scalia’s originalism plumbs new depths in his discussion of Obama’s order not to deport undocumented immigrants brought here as children. Confronted with such an assertion of presidential power, Scalia writes, “the delegates to the Grand Convention [of 1787] would have rushed to the exits.” This is Hypothetical, or Imaginary, Originalism, which, I suppose, isn’t that much worse than basing Arizona’s sovereign status on laws designed to preserve slavery.

Scalia has one more joker up his sleeve in his defense of the Arizona law’s criminalization of undocumented immigrants who “knowingly apply for … or perform work.” He notes that Congress has criminalized the hiring of undocumented immigrants and, as Justice Anthony Kennedy’s majority opinion documents, that Congress, in its deliberations leading up to the 1986 immigration-reform law, considered and rejected the idea of making undocumented work a crime for which the worker would be liable. Such a rejection, however, doesn’t limit what states can do—at least, not in Scalia land.

All this state-sovereignty mumbo jumbo would be remarkable enough. But to really appreciate the mind of Antonin Scalia, we need to consider it alongside the day’s other major ruling—that of the five justices (Scalia included) who wrote the majority opinion in Citizens United not to hear an appeal of that decision from the state of Montana, which has had a prohibition of corporate spending in state elections on its books since 1912. As Jaime Fuller documented in the June Prospect, the state’s elected officials and judges were bought lock, stock, and barrel by major copper companies in the early years of the 20th century. Outraged voters responded by enacting by initiative the Corrupt Practices Act, which banned corporate spending in state elections.

Dissenting from the five Citizen-Uniter justices’ refusal of Montana’s appeal, Justice Stephen Breyer (joined by the Court’s three other liberals, Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor) noted that Montana’s history demonstrates that “independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana” —a reference to Kennedy’s majority opinion in Citizens, which expressed doubt that corporate spending would lead to corruption or its appearance.

But the claims of sometimes-sovereign Montana to regulate corporate spending in light of its demonstrably baleful effect on the state’s democratic governance carried no weight with Scalia, defender of sovereign Arizona’s right to make war on its own if the feds don’t rise to the occasion. Which brings us face-to-face with Antonin Scalia’s criterion for state sovereignty: When a state agrees with Scalia, it’s sovereign. When it disagrees, it’s not.